ALJDEC decisions subject to certification as final

2021A-05177-CHC-ROC · Registrar of Contractors · 2022-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Torres,

COMPLAINANT

Advanced Roofing Solutions LLC

License No. ROC 330288,

RESPONDENT

No. 2021A-05177-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 30, 2022

APPEARANCES: Complainant David Torres appeared on his own behalf. Richie Noragaray, Owner and Qualifying Party, appeared on behalf of Respondent Advanced Roofing Solutions LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Advanced Roofing Solutions LLC (Respondent) is the holder of License No. 330288 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 13, 2021, David Torres (Complainant) entered into a contract with Respondent for a tear off and install of a roofing system for a total contract price of $10,236.00. The contract did not include the date the parties entered into the contract or the estimated date of completion and was not signed by the parties.

On or about October 13, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Arlo Houston. After a jobsite inspection, Investigator Houston issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on December 24, 2021.

RESTRICTIONS

You may not perform or hire other contractors to perform work that is outside the scope of your license.

If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Submit an updated version of a contract template that complies with the provisions of A.R.S. § 32-1158

Compliance Item: 1 - "There are 44 areas where the roofing material is not adhering properly."

Investigator’s Observation: Verified. Upon inspection at this JSI I observed for many areas throughout the entirety of the roofing system where the roofing courses were poorly adhered and not attached at course overlaps and ends at drip edge.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Following the issuance of the written directive, Respondent made no attempt to contact Complainant regarding the work to be performed. After the deadline in the directive expired, Investigator Houston was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Houston was out on leave at the time of the hearing, so Investigator Randy Cason appeared in his stead. Investigator Cason testified as to the observations Investigator Houston made of the roof at the time of the jobsite inspection. Investigator Cason noted that Complainant declined a water test at the time of the jobsite inspection because he knew there was already water damage in the house. Investigator Cason indicated that at the time of the prehearing inspection, Complainant had made some changes to the roof.

Complainant testified that Respondent did not have any contact from Respondent after the directive was issued prior to the deadline expiring. Complainant stated that he did not make any alterations to the roof until December 26, 2021, after the deadline in the written directive expired.

Mr. Norzagaray was present for the hearing, but upon being sworn in to present his testimony, he disconnected from the hearing, either by his own volition or due to a technical issue. The Administrative Law Judge attempted to contact Mr. Norzagaray on numerous occasions attempting to reconnect him to the hearing. On some occasions, the call went directly to voicemail and on some occasions the call rang several times before being sent to voicemail. The Administrative Law Judge left a message for Mr. Norzagaray indicating that if he did not answer the next call, the hearing would conclude in his absence. When Mr. Norzagaray failed to answer the next call, the hearing reconvened and concluded. At no point did Mr. Norzagaray contact the Office of Administrative Hearings after that time to provide an explanation as to why he was disconnected and/or unable to reconnect to the hearing.

Administrative notice is taken of Respondent’s prior License record on April 18, 2022. Such prior License record reflects that Respondent’s License No. 330288 was first issued on August 24, 2020, and was suspended as of March 4, 2021, for lack of a qualifying party. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 330288.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification.

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-137160-45720000Done this day, April 19, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By: Miranda Alvarez

Legal Secretary